A recent political debacle over Obama’s recess appointments raises a fascinating constitutional question and highlights the troubling, aggressive relationship that has developed between the President and Congressional Republicans. This case offers an opportunity to also examine the behavior of Congressional Republicans and the party’s Presidential candidates.

Newt Gingrich has suggested that Republicans should prevent any further funding of the Labor Relations Board (LRB) and Consumer Protection Agency Bureau (CPAB) in response to Barack Obama’s recess appointments to these bodies. (A Recess appointment is when the President appoints an individual, on a temporary basis, while Congress is not in session thereby avoiding the need for Senate confirmation.) Congressional Republicans have already been trying to employ Gingrich’s suggested tactic of financial strangulation against the CPAB that was established as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act that Republicans roundly scorn. Senate Republicans have also filibustered any nominee to head the CPAB. While the other Republican candidates have not openly backed Gingrich’s idea, they have all condemned Obama for executive overreach and discussed the possibility of legal action. While hyperbolic, Republican complaints raise legitimate constitutional concerns about some of the specifics of this incident, they do not acknowledge the Republican role in motivating Obama’s bureaucratic maneuvering. Obama initially threatened the recess appointment for the head of the CPAB after Senate Republicans filibustered the motion to vote on that nominee or any other nominee to head that agency.

Republicans have inverted the concept of the power of the purse, which refers the Congress’s authority to apportion all government spending. By only preventing action rather than passing legislation to dictate federal spending, Republicans are holding the purse hostage to achieve their aims. Congress normally passes legislation to determine the distribution of funds. However in this case Republicans are preventing the passage of funding legislation – through inaction in the house or filibuster in the Senate – to destroy Congressionally established agencies. Republicans are intentionally paralyzing Congress because they do not have the votes to legislatively eliminate the LRB or the CPAB. They have deftly and effectively manipulated the rules of the Senate, but this tendency towards stubborn and aggressive bureaucratic manipulation cannot be a governing strategy. Obama was forced to make an unprecedented and perhaps unconstitutional move to do something as simple as appoint members to government agencies.

On January 4th Obama circumvented Republican efforts to eliminate the CPAB and the LRB, which Republicans have long scorned for its “pro-union bias.” House Republicans sought to modify a strategy used effectively by Harry Reid starting in November of 2007 to prevent George Bush from installing recess appointments that the Senate was refusing to approve. Reid held pro forma sessions – “a brief meeting of the Senate…in which no business is conducted” – so that no Congressional recess would be longer than three days. Many scholars believe that three days is the minimum length recess during which a president may make a recess appointment. The constitutional question did not arise in the Bush-Reid case because Bush did not try to make a recess appointment between pro forma sessions, which is precisely what Obama recently did.

House Republicans had refused to pass a senate motion to adjourn for recess, forcing the Senate to convene, as occurred in 2007, at least every three days throughout the winter break, theoretically preventing any recess appointments. The White House argued that those pro forma sessions do not count since no business is conducted. So, despite Congress’s failure to pass the motion to recess, the administration argues, Congress is not in session. White House and Congressional bureaucratic maneuvering is creating a growing antagonism between them, as well as an environment that encourages both to seek new constitutional ground to outdo the other. It is unclear whether Republicans will press Obama on the legality of the recess appointments, risking a constitutional crisis that will almost certainly need to be resolved by the courts. If congressional Republicans sustain their stubborn approach to governing, some sort of crisis will surely arise.

The constitutional language that establishes the executive authority to make recess appointments – Article Two, Section Two of the Constitution – is unclear enough that Republicans will likely hesitate before risking a public defeat to Obama in court. While Gingrich’s strategic alignment with the most confrontational elements in the GOP makes the prospect of his presidency particularly troubling, the prevalence of this obstructionist approach likely means that any Republican administration would be beholden to this radical constituency.

There are more truthful interpetations of what is happening, Obama has NEVER compromised. It was billed as compromise, but it was “My way or no way” then the democrat majority (even during the last Bush years) just rammed it through! Pass it, then you can find out what is in it!!!!!! And Obama ruling by fiat, appointing czars to control all of us by bureaucracy. Appointing people who should be in jail, Known communist activists, child molesters, and old line radicals! Some who EVEN HIS OWN party refused! This time he didn’t even wait for a recess, just appointed them anyway. His appointments have almost destroyed our economy, and now he circumvents congress completely! These are the actions of a dictator. Signing away our civil rights, forming a private army, and rehabbing the Clinton era concentration camps, I’m worrying about another holocaust, right here!

These apoplectic ravings exemplify an unvarnished hatred and hyperbole for a Chief Executive left with few options. I am not surprised that the President exercised his options in support of agencies whose purpose it is to protect the general public. Republican manipulations have thus far deprived the LRB and the Consumer Protection Agency the necessary ingredients to provide urgently needed services: management and funding. Who among a functional majority of Conservative legislators are serving the Peoples’ interests? That party has publically declared that no matter what business is set before it will use any and all measures to hobble or destroy it. That is, their actions and decisions are pre-determined, regardless of the, as yet, unspecified provisions that constitute any bill, I do not understand an electorate that accepts an unremitting visceral hatred whose exercise prevents the Congress from meeting its Constitutional obligations. How often i have seen the Public accept viscious obstructionism whose outcomes oppose its very interests? I cannot understand why a nation that overwhelmingly professes to embrace a loving God seldom rises to speak out for healing and a determination to become whole again. The Occupy movement is quite possibly only the leading edge of a plea for the reenfranchisement of the American majority. Should hatred and disregard for the needs of America continue, I fear thar a Constitutional Crisis may become but a mid-point along a path to irrevocable social disorder.

These apoplectic ravings exemplify an unvarnished hatred and hyperbole for a Chief Executive left with few options. I am not surprised that the President exercised his options in support of agencies whose purpose it is to protect the general public. Republican manipulations have thus far deprived the LRB and the Consumer Protection Agency the necessary ingredients to provide urgently needed services: management and funding. Who among a functional majority of Conservative legislators are serving the Peoples’ interests? That party has publically declared that no matter what business is set before it will use any and all measures to hobble or destroy it. That is, their actions and decisions are pre-determined, regardless of the, as yet, unspecified provisions that constitute any bill. I do not understand an electorate that accepts an unremitting visceral hatred whose exercise prevents the Congress from meeting its Constitutional obligations. How often i have seen the Public accept viscious obstructionism whose outcomes oppose its very interests? I cannot understand why a nation that overwhelmingly professes to embrace a loving God seldom rises to speak out for healing and a determination to become whole again. The Occupy movement is quite possibly only the leading edge of a plea for the reenfranchisement of the American majority. Should hatred and disregard for the needs of America continue, I fear thar a Constitutional Crisis may become but a mid-point along a path to irrevocable social disorder.

So now Obama is a communist, child molester, and dictator. At least his birth certificate was not challenged. Yes, when lacking arguments, throw mud.
President Obama has faced more filibusters from Republicans in Congress than both Presidents Bush and President Reagan faced during their Presidencies. Republican Senator DeMint said early on that the Republican strategy should be to defeat any health care reform, as this would be Obama’s “Waterloo.” Yes, leaving 50 million people without health insurance is the Republicans’ idea of an ideal society.
Then let us remember that, after howling about jobs through the 2010 campaign, Republican Senate Minority leader Mitch McConnell said that his top priority was to defeat Obama in 2012. What happened to the jobs? Well, Republicans have pushed to end unemployment insurance, and have produced no jobs bills at all. What have we gotten? A symbolic bill to reverse the health care reform act, a bill to rename a post office, redundant bills concerning abortion restrictions, and the refusal to even consider major political appointments. I suppose this constitutes Presidential tyranny to some.
If anything, President Obama has bent over backward for the Republicans. In health care, President Obama did not push for the public option or an expansion of Medicare to people age 55, but instead followed a Republican plan (first implemented by Mitt Romney when he was Massachusetts governor) that required people to purchase private health insurance, which unfortunately will impair the campaign to lower health costs. So how did the Republicans react to their own plan? They opposed it, of course.
Then there was the stimulus. President Obama substantially reduced the amount of money to be used for public works projects, and made tax cuts (for business) one-third of the bill’s costs. What did the Republicans do? They voted against it, and killed any attempt to continue the stimulus, in spite of Congressional Budget Office data that proved that jobs were created as a result ot the stimulus. Now remember that this is the same Republican party that is pushing the Keystone pipeline, which is nothing more than a stimulus package for the oil industry, and yes, now the Republicans are gushing about the supposed 100,000 jobs (in reality, maybe 6,000 temporary jobs) that will be created by the pipeline. One thing about the Republicans: they are consistent in their hypocrisy.
You can tell people have nothing to say when they resort to personal attacks. I am sure there will be Republicans accusing Obama of employing space aliens or unicorns, and make some other absurd charge (maybe they can revive the blood libel) that will hide their lack of an agenda other than doing everything to make the rich richer and the rest of us poorer. President Obama is a tepid President, but the Republicans would be a disaster.

Well, reading these responses, no one can say that Tikkun is “preaching to the choir.” There are wide variety of people who read Tikkun among the 150,000 people who consult our Tikkun Daily and/or our website http://www.tikkun.org and http://www.spiritualprogressives.org. Viva diversity!